QUINLAN and THE OWNERS OF 6 CALE STREET & 21 LEONORA STREET
[2009] WASAT 199
•14 OCTOBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: QUINLAN and THE OWNERS OF 6 CALE STREET & 21 LEONORA STREET [2009] WASAT 199
MEMBER: MR T CAREY (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 14 OCTOBER 2009
FILE NO/S: CC 314 of 2009
BETWEEN: PATRICIA ANNE QUINLAN
Applicant
AND
THE OWNERS OF 6 CALE STREET & 21 LEONORA STREET
Respondent
Catchwords:
Strata titles - Maintenance and repair of sewerage drainage line - Whether common property or part of lot - Complaint that management function of strata company undertaken by one proprietor - Obligation to hold annual general meetings - Obligation to keep books and records
Legislation:
Strata Titles Act 1985 (WA), s 35, s 35(1)(h), s 81(1), s 83(1), Sch 1 bylaw 11
Result:
Application successful in part
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Selfrepresented
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant, a proprietor of a lot in a strata scheme, sought reimbursement from the strata company of the cost of having blockages cleared from sewerage drainage pipes and for the replacement of a section of the pipes. She also sought an order that the strata company follow the requirements of the Strata Titles Act1985 (WA), including those for the holding of annual general meetings, and keeping of books and records.
The respondent opposed the application. In relation to the reimbursement claim, the opposition was based on the attribution of responsibility for the section of the sewerage pipes affected by the blockage problem to the applicant, and the fact that other proprietors had paid for similar works without any claim on the strata company.
The Tribunal found in favour of the reimbursement claim on the basis that the cause of the problem was located in the common property and ordered that the total relevant amount be paid by the respondent. It also upheld the second claim but limited its order to a requirement that an annual general meeting be held. The Tribunal envisaged that this might usher in a new era of management of the strata company.
Application
This is an application under s 83(1) of the Strata Titles Act 1985 (WA) (ST Act) for orders in the following terms:
1)That the costs incurred by the applicant totalling $1,939.40 towards the maintenance and repair to the common property sewer and drainage lines be shared by all proprietors in proportion to their respective units of entitlement [sic].
2)That the strata company be ordered to follow the requirements of the ST Act which includes [sic] but is [sic] not restricted to holding general meetings and keeping books and records relating to the strata company.
Background
The strata scheme with which the application is concerned is a four lot residential scheme situated in Como. The scheme was registered in 1974. Consistent with older strata schemes, it comprises four built lots surrounded by common property. The proprietor of each lot has the same unit entitlement.
For a period of some years now, problems have been experienced with blockages of the sewerage line servicing the parcel. According to a schematic diagram of the parcel showing the sewerage pipes, there is a common pipe spanning the fronts of each of the four lots before it takes a right angled turn towards the abutting road, Cale Street, where, presumably, it connects with the mains. The diagram also shows the various connections from the common pipe to individual lots, generally two to each lot. One of those penetrates the lot culminating at the water closet at each lot, while the second terminates just short of the lot boundary, presumably servicing a garden tap or such like.
In short, the first complaint which the applicant brings to the Tribunal is that she has paid for a number of attendances at the scheme by plumbers to deal with issues affecting the performance of the sewer line forming part of the common property, for which she has not been fully reimbursed by the strata company.
In relation to the second order sought, the applicant's complaint is directed principally to the fact that one proprietor, Ms Dianne McLeod, has undertaken the functions of the strata company, resulting in certain requirements of the ST Act not being complied with.
I will provide further details in relation to both claims, including the response of Ms McLeod in each case, before setting out my own consideration and findings.
Reimbursement claim
Based on the documents filed by the applicant and Ms McLeod, the scheme has experienced numerous problems with the proper functioning of its sewerage drainage system over a number of years. The particular problem giving rise to the applicant's claim has been documented in the form of a series of invoices paid by the applicant to clear blockages between August 2007 and July 2008 totalling $1,257.40, and quotations for the replacement of a section of sewer pipes, the lower of which, being the quotation accepted by the applicant, is for $682.
According to a letter dated 12 December 2008 from the applicant's agent, Mr Angus, a strata consultant to Ms McLeod, it was claimed that the other two proprietors (neither of whom resides in their respective lots) had agreed to share the cost of the replacement of some of the pipes and Ms McLeod was requested to 'also contribute your quarter-share' equating to $170.50. In addition, the letter sought reimbursement from Ms McLeod of 25% of the $1,257.40 total of plumbing costs incurred, equalling $314.35.
It appears that no response to Mr Angus' letter was forthcoming until the application was filed with the Tribunal on 5 March 2009. However, on the basis of earlier correspondence between the parties, as confirmed by Ms McLeod's response to the application dated 10 March 2009, Ms McLeod relies upon the following:
•The number of occasions that other proprietors had to deal with similar blockages, which they did at their expense.
•Her attribution of responsibility for all the blockages, including those of other proprietors, to blockages in the applicant's own sewerage line, and not the 'corporate line'. According to Ms McLeod, the applicant has consistently failed to do as she and at least one other owner had done, to replace the old clay sewerage plumbing associated with her lot with new PVC plumbing.
With reference to the latter point, the following further details were provided in Ms McLeod's response dated 10 March 2009, at para 11:
When PlumBest carried out the work on 15th October 2008, I took photographs of the exact locations of the damage in case these had to be presented to the Corporate Body at a latter [sic] stage. The attached photographs (dated that day) show that the problem was, and always has been, in a damaged clay pipe directly outside Unit 6B's sewerage outlet, leading to the corporate line. Further, these two men advised that apart from a few roots, there was no blockage in the corporate line. (Ms McLeod's emphasis.)
The first of the photographs provided by Ms McLeod with her response has identified as the 'problem area' an excavated area of pipe work adjacent, but external to, the building comprising the applicant's lot. The second photograph shows as the 'corporate line' the pipe alignment running parallel to the boundary of the building, with the feeder pipe from the applicant's lot described as '6B's pipes'. The third photograph shows a workman in the trench next to the exposed 'problem area' with the notation, 'corporate line not yet uncovered!'
Claim of failure of strata company to comply with ST Act requirements
The gravamen of this complaint is that there has been a general failure by the strata company, through the agency of Ms McLeod, to comply with obligations imposed on it by the ST Act. The specific respects in which such a failure is said to have occurred are:
a)Ms McLeod has, for a long time, personally assumed the responsibility of the strata company's decisionmaking function;
b)There has been a failure to hold annual general meetings; and
c)There has been a failure to keep proper books and records.
Ms McLeod rejects the applicant's claim on the following grounds:
•As there are less than five lots in the strata scheme, 'it is not compulsory to have a registered strata company, nor to hold regular meetings, keep books and records etc'.
•Ms McLeod has been living in the scheme for 20 years. Since being 'landed with the secretariat (a thankless job!)', she claims to have called 'many, many meetings', but that she gave up doing so after owners did not attend them.
•Ms McLeod claims to have kept books, minutes and other records, that she is an aged pensioner, and that she performs the 'secretariat' function on behalf of all owners in order to keep costs down.
•She denies that she 'took it upon herself to assume sole responsibility' of the strata company.
The applicant, for her part, says that such meetings as have occurred have been attended by at least three owners. Her response to Ms McLeod's comments concerning the 'secretariat' position was to note that Ms McLeod has never asked another owner whether they would like to take the position on.
CONSIDERATION
Reimbursement claim
The actual order sought in the application is an order pursuant to s 83(1) of the ST Act:
That the costs incurred by the applicant totalling $1,939.40 towards the maintenance and repair to the common property sewer and drainage lines be shared by all proprietors in proportion to their respective [unit entitlements] within 14 days of your order being issued.
Although the application was initially directed to Ms McLeod as the sole respondent, by order of the Tribunal at a directions hearing on 19 March 2009, the application was amended by substituting for Ms McLeod the strata company as sole respondent. The reason for this was that the 'power, authority, duty or function' sought to be enforced by the order reproduced above is the duty of the strata company under s 35 of the ST Act to properly maintain and repair where necessary the common property and it is against the strata company that the claim lies. Similarly, the order sought under the claim of failure to comply with the ST Act requirements is directed squarely at the strata company.
Having said that the first order needed to be sought as against the strata company, it appears that the practical outcome of the granting of the order would be that the applicant would be entitled to be paid $484.85 by Ms McLeod. This is because, according to the applicant, she has received the payment of that amount from each of the two other nonresident proprietors, and only Ms McLeod has refused.
Determination of the reimbursement claim depends upon the correct characterisation of the section of the compromised sewerage line - either as part of the applicant's lot or part of the common property. I have referred to Ms McLeod's position, particularly in her response document, and the photographs which she provides. Ms McLeod, apparently, regards only the common drainage line which runs parallel to the building as the 'corporate line', with the feeder line from the applicant's lot, including that part between the external wall of the applicant's lot and the common line described by Ms McLeod as '6B's pipes'. But to the extent that those pipes are external to the applicant's lot, this is a misnomer. Everything which lies outside the lot, the boundary of which, according the strata plan, is the external surfaces of the building, is common property. It matters not that the pipe is the continuation of a pipe falling within the lot. (There may be a question in any event whether any pipe beneath the floor of a lot is part of the lot or is common property, but that is not a question which calls to be determined in this matter.) Ms McLeod is in no doubt as to the location of 'the problem', as the following excerpt from para 11 of Ms McLeod's response shows:
The attached photographs (dated that day) show that the problem was, and always has been, in a damaged clay pipe directly outside Unit 6B's sewerage outlet.
It is clear that the blockage occurred in a feeder line from the applicant's unit to the common line, which is external to the applicant's lot and part of the common property. That being so, clearly, the responsibility for rectifying 'the problem' was the strata company's.
The other point relied upon by Ms McLeod - that other proprietors, including herself, have dealt with similar blockages at their own expense - may well give rise to claims by the owners concerned similar to the current claim of the applicant. It is not a reason to reject the applicant's claim which clearly exists.
I turn then to the appropriateness of the order that should be made. An order should reflect the matter in relation to which the applicant has established an entitlement. It also needs to be an order of the type that the Tribunal is empowered by the ST Act to grant. The order may be expressed in terms different from the order sought, so long as it does not differ in substance from the order sought: s 81(1) of the ST Act. Finally, it should be limited to relief which so far has not been forthcoming voluntarily.
The applicant has established her right to be reimbursed by the strata company the expense incurred by her in dealing with blockages of the common property sewerage line, together with the accepted cost of the envisaged replacement of part of the line. There will be an order in the following terms:
The strata company shall pay to the applicant the sum of $484.85, being the balance of the cost of maintenance and repair of the common property sewerage line incurred and to be incurred by her, within 14 days of this order.
Noncompliance by the strata company of its obligations
Experience indicates that in many small strata schemes, informal decisionmaking is the rule. Nevertheless, where any proprietor takes the action that the applicant has to enforce compliance with the requirements of the ST Act and the bylaws, being the repository of the relevant law relating to such matters, it is incumbent on this Tribunal to grant appropriate relief where necessary so as to ensure compliance with the law.
I have outlined, when dealing with the applicant's claim concerning this item, the specific failures which have been alleged. Although Ms McLeod, an aged pensioner, appears to have taken upon herself the onerous and, as she puts it, thankless task of attending to the functions of the strata company, there can be little doubt, in doing so, she has unwittingly been party to the failures or omissions of which the applicant complains. Further, and by way of response to contentions raised by Ms McLeod:
•Whilst she considered that she was promoting the interests of all the proprietors by undertaking those tasks, it is not for Ms McLeod, or any other proprietor, to impose their will upon the other members of the strata company where to do so is to interfere with the proper decisionmaking processes of strata companies under the ST Act and the bylaws of the strata scheme;
•It is not correct that, by reason of the scheme being comprised of fewer than five lots, the usual obligations for annual general meetings, keeping books and records, and so on do not apply. This might be the case, but only after a strata company has made a resolution under s 36B of the ST Act that any of the requirements referred to by that section do not apply.
On considering all of the documents, including the correspondence prior to the application, and in particular, suggestions made for the conduct of strata company business of the scheme in the letters from Mr Angus to Ms McLeod, it appears to me that the interests of all concerned would be best accommodated by facilitating one of Mr Angus' suggestions that a properly convened annual general meeting occur in order that a resolution that all owners constitute the council and that powers of the council be delegated to the applicant and Ms McLeod be put. Were such a resolution to be passed, a new era would be ushered in in terms of management of the strata company, which would then be much better placed to deal with issues as they arise and to respond to legitimate demands of members.
I am not prepared, at this stage, to make any further order regarding management of the strata company in terms of the second order sought. The filed documents do not make clear which 'books and records relating to the strata company' meeting the description of the books and records required to be retained by strata companies under s 35(1)(h) of the ST Act have been kept and those that have not been. More fundamentally, however, it is important that the correct foundations of the strata company's decisionmaking be established before imposing such an obligation. The record-keeping obligation exists in any event, but, as things presently stand, the obligation of compliance with any order would doubtless fall upon Ms McLeod, when the applicant's principal complaint is directed to the general deficiencies in the decision-making processes of the strata company.
There will therefore be an order requiring the strata company to convene an annual general meeting within a reasonable period.
Order
The Tribunal orders that:
1.The strata company shall pay to the applicant the sum of $484.85, being the balance of the cost of maintenance and repair of the common property sewerage line incurred and to be incurred by her, within 14 days of this order.
2.The respondent shall convene an annual general meeting in accordance with the requirements of Sch 1 by-law 11 of the Strata Titles Act 1985 (WA), such annual general meeting to be held no later than 13 November 2009.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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